[00:00:10] Speaker 02: The next case for argument is 161278, Rocky Mountain Helium versus the United States. [00:00:28] Speaker 02: Mr. Bush, whenever you're ready. [00:00:40] Speaker 05: Good morning. [00:00:40] Speaker 05: May it please the court. [00:00:42] Speaker 05: My name is David Bush. [00:00:43] Speaker 05: I'm here for Rocky Mountain Helium. [00:00:47] Speaker 05: We are here on an appeal from a dismissal under a Rule 12B motion to dismiss, which is a very high hill to climb. [00:00:58] Speaker 05: And there are many reasons that we can say that the court erred. [00:01:03] Speaker 05: But I'm going to talk about just two. [00:01:05] Speaker 05: Two. [00:01:06] Speaker 05: I think that will really encapsulate [00:01:09] Speaker 05: the main points here. [00:01:10] Speaker 05: First of all, the court decided facts, and that had profound implications in its decision. [00:01:18] Speaker 00: Second... Can I ask you the... I don't think that you disputed in your briefs that it was proper for the Court of Federal Claims to look at the contracts at issue here [00:01:39] Speaker 00: in the same way that it's commonplace and proper, even on a Rule 12B motion, 12B6 even, to look at contracts and other documents attached to or incorporated into a complaint. [00:01:59] Speaker 00: Is that right? [00:02:00] Speaker 05: That's absolutely right. [00:02:01] Speaker 05: And we only found those documents helped us. [00:02:04] Speaker 05: So we had no reason to object to them being referred to by the court. [00:02:09] Speaker 05: and included with the briefings. [00:02:14] Speaker 05: The court decided facts that had a profound influence on this decision, and it had no authority to define those facts. [00:02:20] Speaker 05: Secondly, the court misread the dispute resolution provision in the settlement agreements. [00:02:28] Speaker 05: And it misread it in several respects, which I'll unpack a bit for you. [00:02:33] Speaker 05: But in doing that, it also had a profound effect on this decision. [00:02:38] Speaker 05: Those are the two that I wanted to talk about. [00:02:39] Speaker 05: Let me turn to the erroneous findings of fact, first of all. [00:02:45] Speaker 05: As a matter of deciding jurisdiction, if the truth of allegations are disputed, then a court may decide jurisdictional facts. [00:02:56] Speaker 05: There was no dispute here. [00:02:58] Speaker 05: If you look at footnote two of the motion to dismiss that the government filed, they said in there, for purposes of this motion, we are accepting all the allegations as true. [00:03:08] Speaker 05: And if you had any doubt there, look at page 11 of their response brief. [00:03:11] Speaker 05: They reiterated that. [00:03:13] Speaker 05: For purposes of all this, we are accepting as true the allegations by Rocky Mountain Helium. [00:03:18] Speaker 05: So there were no disputed facts. [00:03:20] Speaker 05: There was no truth that was being challenged that the court could have used as a justification to decide jurisdictional facts. [00:03:28] Speaker 05: And the fact we're talking about kind of in two flavors. [00:03:31] Speaker 05: Flavor one was the court said that Rocky Mountain Helium defaulted on the contract. [00:03:36] Speaker 05: Flavor number two is it said that Rocky Mountain helium failed to pay the rents without excuse. [00:03:43] Speaker 00: Well, let me, let me ask you about the, the point that you're just making about the, the, um, whether there were disputed facts, um, put aside for a minute, the two, um, statements or footnotes that you, that you mentioned. [00:03:57] Speaker 00: If I remember right and tell me if I'm wrong, the government in its motion to dismiss said, [00:04:03] Speaker 00: the helium contract, the 1994 helium contract, was terminated in 2004. [00:04:12] Speaker 00: Now, call it what you will, that is a dispute of your assertion in your complaint, if the assertion is read this way, that no, the helium contract wasn't actually terminated until 2009. [00:04:32] Speaker 00: And that's why I asked you about whether you had made a challenge to the consideration by the court of the helium contract. [00:04:41] Speaker 00: And I guess the letter in 2004 that the government sent saying, we hereby cancel the thing, which prompted you to go to the CBCA, right? [00:04:52] Speaker 00: So it seemed to me they put that squarely in play in the Court of Federal Claims. [00:04:58] Speaker 00: When did the helium contract get terminated? [00:05:01] Speaker 05: The termination of the helium contract was squarely in play. [00:05:05] Speaker 05: I totally agree with you. [00:05:07] Speaker 05: Those aren't the facts that the court of claims decided that causes all the problems we're having now. [00:05:13] Speaker 05: Well, why don't you tell us what those are? [00:05:15] Speaker 02: Furthermore, I'm sorry. [00:05:16] Speaker 02: Can you tell us what those facts are that you said? [00:05:19] Speaker 05: Yeah, the facts are, and this is on the, I'll give you the reference here. [00:05:25] Speaker 05: It was in the appendix, page nine and 10, those are really the critical pages of the court's order. [00:05:32] Speaker 05: At the bottom of page 9, APPX 9 in our brief, the court there said that the helium contract was in default by the actions of Rocky Mountain Helium. [00:05:44] Speaker 05: That word default, every word counts. [00:05:48] Speaker 05: That word is nowhere in the pleadings. [00:05:50] Speaker 00: I have looked and looked for it. [00:05:51] Speaker 00: But why is that a material element of the Court of Federal Claims? [00:05:57] Speaker 00: I took it, the Court of Federal Claims decision. [00:05:59] Speaker 00: I took it that as to the helium contract, put aside the settlement agreement. [00:06:03] Speaker 00: We can get to that later. [00:06:05] Speaker 00: But as to the helium contract, the Court of Federal Claims, again, on the dismissal on the merits, the 12B6, said, I look at this contract. [00:06:15] Speaker 00: It was terminated in 2004. [00:06:18] Speaker 00: It was never reinstated. [00:06:20] Speaker 00: You don't have a breach claim for that. [00:06:24] Speaker 00: And then the court said something else about the settlement agreement. [00:06:29] Speaker 00: quite different from that. [00:06:31] Speaker 00: But just as to the helium contract, which I guess is your count number one in your complaint, or one of the two? [00:06:38] Speaker 00: Claim number one. [00:06:39] Speaker 05: Well, let me answer that directly. [00:06:41] Speaker 05: If one looks at the settlement agreement, the settlement agreement clearly talks about preferential rights. [00:06:47] Speaker 05: Where those preferential rights come from was the helium contract. [00:06:52] Speaker 05: And the settlement agreement talked about release of claims of preferential rights. [00:06:58] Speaker 05: That certainly suggests that they were rights out there. [00:07:01] Speaker 05: They hadn't disappeared. [00:07:02] Speaker 05: They might have been in abeyance for some years as this dispute was going forward. [00:07:07] Speaker 05: The government, yes, had advised it wanted to terminate the helium contract. [00:07:10] Speaker 05: That led to all kinds of litigation before the Civilian Board of Contract Appeals. [00:07:15] Speaker 05: But it was still recognized that there were rights out there because it was in the settlement agreement. [00:07:20] Speaker 05: And then furthermore, if you look at the April 21st letter of [00:07:26] Speaker 05: I'm not sure what you want to call it, the drop dead letter of April 21st, 2009 written by Leslie Thies of the Bureau of Reclamation. [00:07:33] Speaker 05: She said in there, the helium contract now is fully, finally, and permanently terminated. [00:07:40] Speaker 05: Now why did the BLM put that in writing April 21st, 2009 if it was really a done deal that that agreement had been terminated? [00:07:51] Speaker 05: back in 1996 or 2004. [00:07:54] Speaker 00: It seemed to me that language was kind of, I don't know, Wizard of Oz type language, not saying, well, this is for the first time it's terminated, but really, enough is enough. [00:08:07] Speaker 00: Can we get to the settlement agreement claim? [00:08:13] Speaker 00: I take it your claim, and that was dismissed by the Court of Federal Claims as I read the opinion, [00:08:20] Speaker 00: on the simple ground that there was a disputes clause in the settlement agreement that said you had to go, in certain circumstances, you had to go see the CBCA judge under ADR provisions that, unless you further agree, are simply not binding. [00:08:40] Speaker 00: So you've got to go talk with him about mediation. [00:08:43] Speaker 05: I want to, and I will. [00:08:44] Speaker 05: That's the second major error that the court of claims made. [00:08:48] Speaker 05: I started off by saying there were two big errors. [00:08:50] Speaker 05: One was the finding of fact. [00:08:51] Speaker 05: The other was the misreading of the dispute resolution clause. [00:08:55] Speaker 05: I have to emphasize, I can't do this enough, every word counts. [00:08:59] Speaker 05: When one is construing a contract and a settlement agreement is a contract, every word counts. [00:09:05] Speaker 05: You've got to undertake a plain reading. [00:09:07] Speaker 05: There's lots of case law out there which I can cite that talks about that. [00:09:11] Speaker 05: It starts off by saying, except in the event of a triggering of the sunset provision. [00:09:17] Speaker 05: And give us the page site and the paragraph you have been to in the settlement agreement. [00:09:21] Speaker 05: This is, it's in the settlement agreement, paragraph three, subparagraph one. [00:09:26] Speaker 04: Just a minute, I can give you the... Appendix 72. [00:09:29] Speaker 04: The appendix number for that. [00:09:31] Speaker 04: Right, 72. [00:09:32] Speaker 04: 72 and 73 are the two key pages. [00:09:35] Speaker 05: Is appendix 73, if you're there. [00:09:40] Speaker 05: But it starts off by saying, except in the event of triggering of the sunset provision, clearly that paragraph was accepting from any dispute resolution requirement, triggering the sunset provision, which is exactly what happened here, which is exactly why we filed this lawsuit. [00:09:55] Speaker 03: But I don't understand your argument on this point at all, because it seems to me that the... Let me make sure that I understand what dispute you're talking about. [00:10:03] Speaker 03: It seems to me that the dispute you think the government... [00:10:07] Speaker 03: The provision the government breached is they didn't provide you sufficient information, right? [00:10:12] Speaker 03: Correct. [00:10:13] Speaker 03: And so under the dispute resolution clause, you were required to submit that to the CBCA, right? [00:10:23] Speaker 03: That's correct. [00:10:24] Speaker 03: And now you're saying, we didn't do it. [00:10:26] Speaker 03: And since we didn't submit that to the CBCA, and the government had no reason to expect that the information it provided was deficient, and then [00:10:36] Speaker 03: actually did sunset this because you didn't proclaim the things, you now can still go back to court and raise an argument that previously you would have had to go to the CBCA. [00:10:48] Speaker 03: How is that a reasonable construction of the settlement agreement at all? [00:10:53] Speaker 03: That you can sleep on your rights to submit this to [00:10:57] Speaker 03: to dispute resolution, which you agree it would have been required to, and wait until the government terminates the settlement agreement because you didn't pay the money, and then go into court sometime later to make a challenge that you, in the first instance, should have gone to ADR on. [00:11:12] Speaker 03: How do we know? [00:11:13] Speaker 05: How do we know that Rocky Mountain Helium wasn't going to do that? [00:11:18] Speaker 05: Rocky Mountain Helium never had a chance, Your Honor. [00:11:20] Speaker 03: How do you know that Rocky Mountain Helium wasn't going to seek to arbitrate it? [00:11:25] Speaker 03: Because you didn't. [00:11:27] Speaker 05: Okay, let's separate apples from oranges here, Your Honor. [00:11:31] Speaker 05: You're talking about the issue with providing information, which was the pretext that the government had for terminating the settlement agreement. [00:11:39] Speaker 05: Let's talk about the first. [00:11:40] Speaker 03: You're not disputing that the government provided information here, right? [00:11:44] Speaker 03: You're just arguing that it was deficient. [00:11:46] Speaker 05: Right, which the settlement agreement in it said once that information, and that has to be complete information, [00:11:54] Speaker 05: is provided. [00:11:55] Speaker 05: At that point, there is an obligation then for Rocky Mountain Helium to make its agreed payment. [00:12:00] Speaker 05: It never got the information that it requested. [00:12:03] Speaker 05: It got some, but it was insufficient. [00:12:06] Speaker 03: Where in the record did you ever raise a challenge to the sufficiency of this evidence until you filed the case in court? [00:12:15] Speaker 03: Did you raise it with the ADR judge? [00:12:19] Speaker 05: It could have been, but Rocky Mountain Helium never had a chance to raise that and try to resolve that because the government terminated the contract before Rocky Mountain Helium had a chance to. [00:12:32] Speaker 03: Are you saying the government violated some time deadlines or the like in this contract? [00:12:39] Speaker 03: Because it seems to me that reading the allegations here and the factual allegations and the like is the government turned over data. [00:12:47] Speaker 03: And then it followed the timelines. [00:12:48] Speaker 03: In this case, you didn't pay, and it thereby terminated. [00:12:51] Speaker 03: Are you saying that there was insufficient time for you to review this data, or otherwise the government didn't follow the timeline? [00:12:59] Speaker 05: Yes. [00:13:00] Speaker 05: That is what I'm saying, is that the government never gave Rocky Mountain Hillingham a chance to take this dispute. [00:13:06] Speaker 03: You're being very vague and nonspecific. [00:13:08] Speaker 03: What do you mean you weren't given a chance? [00:13:11] Speaker 03: You agree you were given data, right? [00:13:14] Speaker 03: How long after you got that data [00:13:16] Speaker 03: Did the government sunset the agreement? [00:13:19] Speaker 03: Did they do it on the timeline specified in the agreement? [00:13:23] Speaker 05: I'm going off of memory here, Your Honor, because this was not something that was specifically addressed in the pleadings. [00:13:31] Speaker 05: I believe that the insufficient data that the government provided was sometime early in 2009. [00:13:38] Speaker 05: It was in the first quarter of that year. [00:13:41] Speaker 05: recommend Hillingham said this isn't sufficient they went back and forth some area okay and then and then before before they ever got to take that to Judge Goodman for further mediation the government said we're just going to terminate the agreement. [00:13:54] Speaker 02: Can you give me some dates here I mean do is this where is this on the record I mean I'm confused now in terms of what the time frame was from the time [00:14:01] Speaker 02: The government provided the data, which you argue now is insufficient, and the time that they terminated. [00:14:08] Speaker 05: Yeah, and this is where I'm just grasping my memory a bit, Your Honor, because this was not, in the police, it was not addressed by either party. [00:14:16] Speaker 05: But I believe it was in the first quarter. [00:14:18] Speaker 05: Let me back up. [00:14:19] Speaker 05: The settlement agreement was signed in September 2008. [00:14:21] Speaker 05: There was a period of time when nothing happened. [00:14:25] Speaker 05: And then finally the government provided some data, but not enough. [00:14:28] Speaker 05: And there was an extended period of, [00:14:30] Speaker 05: going back and forth between the government and Rocky Mountain Helium over the sufficiency of the data. [00:14:36] Speaker 05: That was in early 2009. [00:14:37] Speaker 05: And then the government threw up its hands and said, I'm not going to do anymore. [00:14:42] Speaker 05: I'm sending you this drop dead letter, which it did in April 2009. [00:14:46] Speaker 05: There was never any time when the government said, let's take this to Judge Goodman and mediate this information issue. [00:14:53] Speaker 03: But it wasn't incumbent upon the government to do it. [00:14:56] Speaker 03: They provided data they thought was sufficient. [00:14:58] Speaker 03: It was incumbent upon you to raise that through these ADR procedures to the judge. [00:15:04] Speaker 03: Are you saying that the government violated a specific time deadline that gave you x number of days to consider this data and issued the cancellation before they were permitted to under the contract? [00:15:17] Speaker 05: I can't say that. [00:15:18] Speaker 05: I can't say there's any specific timeline, because none was provided the settlement agreement. [00:15:22] Speaker 05: They just said the Rocky Mountain Helium would accept the data. [00:15:27] Speaker 05: Well, once it received the data, then it had 90 days to make payment. [00:15:31] Speaker 05: But there was no time frame for determining the sufficiency. [00:15:34] Speaker 03: Wait, wait, wait. [00:15:35] Speaker 03: So we do have some time now, right? [00:15:36] Speaker 03: So the contract says, once you receive the data, you have 90 days to make payment. [00:15:41] Speaker 03: Well, but the data had to be sufficient. [00:15:43] Speaker 05: I mean, that is just a good faith reading of the contract. [00:15:45] Speaker 02: But if you're on your side, and you think the data isn't sufficient, and you know under the contract, you've got 90 days until, under at least the government's view of the data, [00:15:55] Speaker 02: your payments are going to become due. [00:15:57] Speaker 02: That's clear from the settlement agreement, right? [00:16:00] Speaker 05: Not quite, Your Honor. [00:16:01] Speaker 05: It's 90 days from when the data is accepted by Rocky Mountain Helium that the obligation to make the payment is due. [00:16:09] Speaker 05: But the parties never resolved the sufficiency of the data. [00:16:13] Speaker 02: I know, but isn't it a fair reading that if you're Rocky Mountain, you're saying, well, I better get to this mediator. [00:16:21] Speaker 02: before the 90-day clock runs out, because the 90-day clock is what triggers in the government's view. [00:16:28] Speaker 02: So I've got to resolve this data issue before my payment becomes due in the government's view, right? [00:16:35] Speaker 05: No, I disagree with that. [00:16:37] Speaker 05: It wasn't 90 days from the time the government sent data. [00:16:39] Speaker 05: It was 90 days from the time the data transfer was complete, and it was never completed. [00:16:46] Speaker 05: So the clock never started running. [00:16:50] Speaker 02: But there's an issue in dispute by definition. [00:16:53] Speaker 02: When is the ADR provision ever triggered, then, under your view of the settlement agreement? [00:16:59] Speaker 05: And what's the Court of Claims doing making a decision on those disputed facts? [00:17:03] Speaker 05: This is a Rule 12 motion. [00:17:04] Speaker 02: Well, I'm here to ask the questions, not to answer them. [00:17:07] Speaker 02: I'm sorry. [00:17:07] Speaker 02: So let me ask you again. [00:17:09] Speaker 02: As you read the ADR provision, if you disputed whether the data was sufficient under the settlement agreement, [00:17:19] Speaker 02: wasn't it incumbent upon you to say, I'm invoking this mediation provision or this ADR provision to the government? [00:17:28] Speaker 05: It was incumbent upon both parties if there was any dispute and they couldn't resolve it between themselves to at least try mediation and that's all that dispute resolution paragraph provided was submitting it for mediation to the mediator in the case [00:17:44] Speaker 05: And neither side had done that yet. [00:17:48] Speaker 03: If you're the party that finds it deficient, it's your obligation to raise the dispute. [00:17:54] Speaker 03: If the government thinks it's given you sufficient data, why would it ever go to the mediator? [00:18:01] Speaker 03: You're the one that has the dispute. [00:18:02] Speaker 03: You're the one under the dispute clause that has to raise it to the mediator. [00:18:07] Speaker 05: Both sides had a stake in making sure the settlement agreement was actually effectuated. [00:18:12] Speaker 03: Yes, but I don't understand at all why you're thinking the government would have had to take this to the mediator when they thought they had fully complied with all of their obligations. [00:18:23] Speaker 03: If you think they haven't complied, it was incumbent upon you, and you didn't do it. [00:18:29] Speaker 05: In any event, the government refused to mediate. [00:18:33] Speaker 05: Where is that in the record? [00:18:34] Speaker 05: And that is evident in that April 21st letter. [00:18:39] Speaker 03: Isn't that after the cancellation of the settlement agreement? [00:18:43] Speaker 05: that that was the cancellation of the settlement agreement and the final termination of the helium contract was in the letter of April 21st, 2009. [00:18:51] Speaker 05: And after that, Rocky Mountain helium continued to try to get this matter resolved through mediation with Judge Goodman. [00:18:59] Speaker 03: But you'd already, I mean, that's all beside the point. [00:19:02] Speaker 03: I mean, the government, under the settlement agreement, they were entitled [00:19:05] Speaker 03: to terminate if you didn't make the payments. [00:19:07] Speaker 03: And the fact that you didn't raise the dispute prior to that mediation means that they don't have any obligation going forward to mediate. [00:19:15] Speaker 03: Maybe they could have nicely offered to mediate, but the settlement agreement doesn't give you any right to mediation beyond the cancellation. [00:19:22] Speaker 03: It specifically allowed you to mediate over the terms of the settlement agreement. [00:19:27] Speaker 03: And you didn't follow those. [00:19:29] Speaker 05: Well, I'd go back to every word counts in that contract, including the dispute resolution provision. [00:19:36] Speaker 03: Well, I would too. [00:19:37] Speaker 03: I don't understand how we can grant you any relief when you specifically fail to follow the required settlement provisions here, the mediation provisions that you agreed to. [00:19:49] Speaker 03: And you're now saying, well, we're excused because this only applied until it was sunsetted. [00:19:55] Speaker 03: But under that argument, if you just refuse to follow anything and the government terminated under the sunset provision, then [00:20:04] Speaker 03: There was no mediation at all required. [00:20:06] Speaker 03: And that seems to read the mediation clause out entirely. [00:20:09] Speaker 05: It takes two to tango to have a mediation. [00:20:11] Speaker 05: We cited the Stockton case for that in our briefs. [00:20:15] Speaker 03: And if one side doesn't want to mediate. [00:20:16] Speaker 03: Just let me make this clear. [00:20:18] Speaker 03: I want to make sure I understand you. [00:20:20] Speaker 03: You're not arguing that at any time prior to the cancellation, you filed a request for mediation and the government refused to mediate, are you? [00:20:29] Speaker 03: No. [00:20:29] Speaker 03: OK. [00:20:31] Speaker 05: No, I'm not. [00:20:33] Speaker 05: The Court of Claims said that this matter had to be adjudicated before the Civilian Board of Contract Appeals. [00:20:38] Speaker 05: That word does not appear in the Dispute Resolution Clause. [00:20:42] Speaker 05: It got that word from nowhere. [00:20:46] Speaker 05: All the Dispute Resolution Clause said is, if there is a difference of opinion, obviously the parties can't resolve themselves, they submitted to Judge Goodman. [00:20:56] Speaker 05: Judge Goodman was the mediator. [00:20:57] Speaker 05: He wasn't the board judge. [00:20:59] Speaker 05: As a matter of fact, the board judge had dismissed with prejudice [00:21:03] Speaker 05: this proceeding several months earlier. [00:21:05] Speaker 03: But also included specifically in his order a sentence that said, disputes about this agreement shall be submitted to Judge Goodman for mediation. [00:21:16] Speaker 03: Right? [00:21:16] Speaker 03: You agree that's in the order? [00:21:18] Speaker 05: Yes, I do. [00:21:20] Speaker 05: And that goes back to my point that Rock and that helium never had the opportunity to finally get this to mediation, the dispute over information, because the government terminated the settlement agreement [00:21:33] Speaker 05: before that happened. [00:21:34] Speaker 05: They went back and forth. [00:21:35] Speaker 05: They were trying to resolve it between themselves. [00:21:39] Speaker 05: And then the next thing that happened was the government terminated. [00:21:42] Speaker 02: Thank you. [00:21:43] Speaker 02: You exceeded your time. [00:21:44] Speaker 02: We'll restore two minutes of rebuttal. [00:21:46] Speaker 02: Thank you. [00:22:10] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:22:14] Speaker 01: Rocky Mountain does not have a valid claim in the Court of Federal Claims against BLM, and the Court properly dismissed the complaint. [00:22:23] Speaker 03: Can we get right to the settlement agreement? [00:22:25] Speaker 03: I am confused by the trial court's opinion, and particularly the ground upon which she dismissed the breach of settlement agreement claim. [00:22:35] Speaker 03: It seems to me that it could be read as a jurisdictional dismissal because [00:22:39] Speaker 03: the parties had agreed to these exclusive procedures, or that it could be read as a failure to state a claim, because the intended consequence of these things was not money damages, but this exclusive bargaining procedure. [00:22:59] Speaker 03: And in the end, it may not matter that much, but I think we need to get the grounds for the dismissal correctly. [00:23:05] Speaker 03: Do you think it's a failure to state a claim, or is it a jurisdictional holding? [00:23:10] Speaker 01: I think the court focused primarily on subject matter jurisdiction, at least in that paragraph on page 10 of the appendix. [00:23:17] Speaker 00: Primarily? [00:23:19] Speaker 00: Exclusively? [00:23:20] Speaker 01: I think the court says it does not have subject matter jurisdiction. [00:23:25] Speaker 01: The court's conclusion is a little more broad in that it says both 12b1 and 12b6, but obviously that also applies to the lease claims. [00:23:32] Speaker 01: So I think the court's stated analysis is certainly about the subject matter jurisdiction based on these exclusive [00:23:40] Speaker 01: uh, the exclusive remedies for disputes. [00:23:43] Speaker 00: Are you aware of any precedent for the proposition that an agreement to submit something to voluntary mediation, which may fail, um, overrides a statutory grant of subject matter jurisdiction to a court for, to assert a claim? [00:24:02] Speaker 00: I couldn't find one even, even frankly, in [00:24:05] Speaker 00: if I thought that this were analogous to exhaustion, which in the absence of a clear statutory override is not jurisdictional. [00:24:13] Speaker 01: I am not aware of any case precisely stating what your honor just set forth. [00:24:18] Speaker 01: No. [00:24:20] Speaker 03: The court has seen that in certain- And isn't it actually true that typically these breach of settlement agreement cases, even if they're in other contexts, in administrative contexts and the like, [00:24:35] Speaker 03: we presume that a breach of the settlement agreement can provide money damages, which would normally provide tucker act jurisdiction in the court of federal claims. [00:24:43] Speaker 01: That is certainly for most settlement agreements with the government. [00:24:47] Speaker 01: I think that's probably true. [00:24:49] Speaker 01: I don't have facts in terms of numbers and percentages. [00:24:52] Speaker 01: But there are certain instances in which this court has said you have to look a little bit further. [00:24:58] Speaker 01: Although money damages is presumed for most [00:25:02] Speaker 01: agreements, that's not going to be the case in all agreements with government. [00:25:05] Speaker 00: This is a commercial contract. [00:25:08] Speaker 00: I mean, the couple of two or three kind of exceptions to the very strong default rule that monetary relief is available without having to be specified in a contract, I'm not sure what that default rule would cover if it didn't cover this. [00:25:27] Speaker 01: So the default rule certainly would cover any circumstance in which [00:25:32] Speaker 01: the government has monetary obligations as part of that settlement agreement. [00:25:37] Speaker 03: So hypothetically, if the dispute weren't about the information, but where the information was provided, they made the required payment under the contract, and then for some reason you refused to reinstate leases, could they claim a breach of that provision and state money damages? [00:25:56] Speaker 03: Because certainly, breach of the obligation to reinstate, I think, [00:26:01] Speaker 03: you'd have to concede it has to be read as contemplatory implications. [00:26:07] Speaker 03: And even if that dispute clause may have required them to go first to the arbitrator, it still would contemplate money damages. [00:26:17] Speaker 03: So at least portions of this settlement agreement seem to contemplate money damages and would be within the court's subject matter jurisdiction. [00:26:26] Speaker 01: In the hypothetical that Your Honor has presented in which [00:26:30] Speaker 01: there was a payment, and then it's just a question of whether the Haley lease was not reinstated. [00:26:38] Speaker 01: I think that that would be typically within the Court of Federal Claims jurisdiction. [00:26:42] Speaker 03: So to the extent the Court of Federal Claims said this type of settlement agreement with a mandatory mediation clause removes it from subpar act jurisdiction altogether, it's probably not accurate. [00:27:00] Speaker 01: perhaps too broad a statement, Your Honor. [00:27:02] Speaker 01: However, the dispute at issue here is about this information being given. [00:27:07] Speaker 01: And that clause does not have any sort of money damages for its breach. [00:27:13] Speaker 00: And there are cases in which- It seems to me that's just inseparable. [00:27:18] Speaker 00: The point of this contract is you, Rocky Mountain, may get an opportunity to rent our land in order to make some money off helium, which you've [00:27:30] Speaker 00: which we want to do if it's possible. [00:27:34] Speaker 00: But of course we understand, we the government understand, you're not going to do that until you get some information about whether it's worthwhile. [00:27:41] Speaker 00: The information is going to tell you whether it's worthwhile to build a plant to extract the helium and until you get that we're not obliging you to pay back rent or to do anything else. [00:27:53] Speaker 00: I don't understand how that's not just an integral part of a commercial arrangement. [00:28:00] Speaker 01: Helium lease was certainly a commercial arrangement. [00:28:05] Speaker 01: The settlement agreement, however, was more of a procedural agreement for how to resolve this CBCA appeal and how to have a relationship going forward. [00:28:18] Speaker 00: And possibly put them in a position where on a going forward basis, they have a commercial deal with the government. [00:28:26] Speaker 00: Can I ask you something specifically about the Disputes Clause? [00:28:33] Speaker 00: What is it in the Disputes Clause, and I'm not sure I see anything, that says anything about the timing for the offering of a mediation opportunity to Judge Goodman? [00:28:48] Speaker 00: I'm not sure why that is to be read as saying that has to occur [00:28:55] Speaker 00: before suit is filed, why can't it occur now? [00:29:00] Speaker 01: The dispute resolution paragraph on page 73 does not have any timing requirements. [00:29:10] Speaker 01: You're absolutely correct in that, Your Honor. [00:29:11] Speaker 01: However, the paragraph 11 talks about how, and that's on page 70, that [00:29:23] Speaker 01: after, within 90 days of delivering this information, then Rocky Mountain Helium will have to pay this $116,000. [00:29:32] Speaker 01: So that gives a time frame. [00:29:36] Speaker 00: Right, but it's a merits determination how the two timing periods, you've got basically 90 days to provide them information, 30 to ask for it, 60 to give what you got, right? [00:29:50] Speaker 00: And then they've got 90 [00:29:51] Speaker 00: 90 or 60 or something 90 days after that to make a decision. [00:29:55] Speaker 00: We want to go forward. [00:29:56] Speaker 00: We don't want to make, go forward. [00:29:58] Speaker 00: And if we go forward, we're going to pay you the $111,000 in, in back rent. [00:30:02] Speaker 00: And we're going to move into, into a deal. [00:30:07] Speaker 00: Um, but I don't understand why jurisdiction over the claim is in any way precluded by a disputes clause that says, [00:30:21] Speaker 00: give Judge Goodman a chance to get you two guys to sit down and work something out. [00:30:28] Speaker 00: They can do it now. [00:30:30] Speaker 00: You can do it now. [00:30:32] Speaker 01: We have certainly not argued that mediation would be precluded at this point. [00:30:37] Speaker 01: I'm not sure. [00:30:38] Speaker 03: Well, except that the agreement has been expired, right? [00:30:42] Speaker 03: This is why I don't understand why you're arguing this is a jurisdictional case. [00:30:46] Speaker 03: Isn't this truly failure to state a claim because [00:30:50] Speaker 03: They can't make a claim that the government breached this data agreement because they were obligated to raise any disputes to Judge Goodman. [00:31:01] Speaker 03: They failed to do so. [00:31:02] Speaker 03: And therefore, because they didn't pay, this agreement was canceled. [00:31:07] Speaker 03: And therefore, there's no longer any claims about that specific dispute that should have gone to Judge Goodman. [00:31:14] Speaker 03: That doesn't seem to me to be a jurisdictional argument. [00:31:17] Speaker 03: It seems to me to be a failure state of claim argument. [00:31:20] Speaker 01: Right. [00:31:20] Speaker 01: And we posited both 12b1 and 12b6 rationales for our argument. [00:31:26] Speaker 01: And this court can make an alternative, can uphold on alternative grounds on a 12b motion. [00:31:33] Speaker 00: But let me get back. [00:31:34] Speaker 00: I mean, this is why I guess I was asking about the timing question. [00:31:38] Speaker 00: I don't see anything in this agreement that says you have to give the dispute about stage one data [00:31:48] Speaker 00: before the time lapses, the later 90 days lapses, and you cancel the agreement. [00:32:00] Speaker 01: Well, I think the key there is that the sunset. [00:32:04] Speaker 00: At best, a question of interpreting the contract about the relationship between some implicit timing requirement, because I don't see any explicit ones. [00:32:15] Speaker 01: I think the key here is understanding what the sunset provision does and how it operates. [00:32:21] Speaker 01: It isn't read as something that the BLM must do, and then it's sort of like terminating a lease. [00:32:28] Speaker 01: It is supposed to be a self-executing clause. [00:32:34] Speaker 01: The sunset provision is triggered by these events [00:32:38] Speaker 01: that occur not by any notification by BLM. [00:32:41] Speaker 00: Right, but their claim on the merits is it was not properly triggered because they did not owe you the money. [00:32:51] Speaker 00: Right. [00:32:52] Speaker 00: Because a precondition to that never occurred, namely adequate information. [00:32:57] Speaker 00: That's their claim. [00:32:58] Speaker 01: And given that if their argument is that the sunset provision has not been triggered, then the dispute resolution [00:33:08] Speaker 01: does apply in that the parties agree that disputes have to go to, and counsel agreed this morning that it must go to mediation or some other form of ADR first. [00:33:19] Speaker 00: So do it first. [00:33:21] Speaker 00: No, no, first meaning. [00:33:22] Speaker 00: See, it's the first that it seems to me is the crux of this. [00:33:27] Speaker 00: If he just asked you, do you want to go to mediation? [00:33:30] Speaker 00: Is there any point to it? [00:33:31] Speaker 00: And you say, I don't know what you say. [00:33:33] Speaker 00: You say no, or you say yes. [00:33:36] Speaker 00: Either way, why doesn't the suit go forward? [00:33:40] Speaker 00: Either you say no, or you say yes, and then the mediation doesn't succeed, and you're right back into litigating, which is what you said in your April 2009 letter. [00:33:48] Speaker 00: Sue us. [00:33:49] Speaker 01: The question, Your Honor, is whether this is an exclusive remedy for Rocky Mountain Helium, and it's our position that it is. [00:33:57] Speaker 01: It's not a remedy at all. [00:33:59] Speaker 00: It's go talk to the guy who might get you guys together. [00:34:02] Speaker 01: That there had to be some sort of ADR, and that [00:34:06] Speaker 01: Paragraph two states that once there is a good faith performance by BLM of its obligations, then the CBCA claims go away. [00:34:15] Speaker 01: That indicates that the parties agree that this would be a CBCA dispute and would be resolved within that. [00:34:25] Speaker 00: No, no, they didn't. [00:34:25] Speaker 00: It absolutely does not, not in the sense that you're suggesting. [00:34:29] Speaker 00: To say they agreed it was a CBCA dispute sounds like you're saying, [00:34:33] Speaker 00: They agreed that it would go to CBCA adjudication. [00:34:37] Speaker 00: This provision does not say that. [00:34:40] Speaker 00: It says, go talk to a guy who might help you settle. [00:34:43] Speaker 00: That's all it says. [00:34:44] Speaker 00: It specifically says ADR does not say... Rule 54, and Rule 54 says, unless you agree otherwise, the two of you, it's non-binding. [00:34:55] Speaker 01: That's correct, Your Honor, but it does not mean that the parties could not have agreed. [00:34:59] Speaker 01: whatever Judge Goodman decides is binding, that there's nothing in this agreement that precludes this from going through this ADR provision. [00:35:09] Speaker 02: The rules have to be clearer than that. [00:35:10] Speaker 02: There's nothing in this settlement agreement that compels them to go to binding arbitration and get a result. [00:35:18] Speaker 02: I don't see where it's enough to say, well, that was something they might have done and they might have decided to do since it was an opportunity on the table. [00:35:25] Speaker 02: That seems to me fairly ridiculous. [00:35:28] Speaker 02: I mean, in any agreement, one could say the parties are always free to go out and hire an arbitrator and do it. [00:35:34] Speaker 02: I think it's entirely speculative. [00:35:36] Speaker 01: I think the parties, by specifically agreeing that they would go to ADR, this has to mean something other than the background understanding that you can always go to ADR or mediation. [00:35:48] Speaker 02: Well, no ADR for mediation. [00:35:49] Speaker 02: You think necessarily that paragraph means it must, ADR must mean something that's binding? [00:35:56] Speaker 01: No, Your Honor, that it's not our position. [00:35:58] Speaker 02: OK, so it's mediation, unless otherwise agreed to. [00:36:02] Speaker 01: That's correct. [00:36:03] Speaker 02: So as Judge Toronto said, it's not going to bind the parties. [00:36:09] Speaker 02: It's not a binding alternative dispute resolution adjudication. [00:36:13] Speaker 01: But it is a method that the parties are supposed to use first, and they have agreed to use as the way to resolve [00:36:21] Speaker 01: any disputes about the settlement agreement. [00:36:23] Speaker 01: And as Judge Hughes pointed out... I'm sorry, they can't be right. [00:36:26] Speaker 00: They did not agree that this is the way to resolve. [00:36:31] Speaker 00: Most mediation doesn't work. [00:36:35] Speaker 00: And it's completely within their control whether mediation ends in a resolution. [00:36:39] Speaker 00: They say, no, not enough. [00:36:41] Speaker 00: And I'm going to guess you're going to say, sorry, we're not paying you a penny. [00:36:44] Speaker 00: No contract, no money. [00:36:47] Speaker 00: Can I just ask, are you prepared to say that if they said, let's go talk to Judge Goodman now, that you would say, sure, there's a realistic chance that we could reach a deal? [00:36:57] Speaker 01: I am not prepared. [00:36:57] Speaker 01: I don't have agency counsel here. [00:36:59] Speaker 00: I mean, after the April 2009 letter that said, sue us, we're not talking to you anymore. [00:37:04] Speaker 01: It said that reinstatement of the lease, that having the lease going forward was not going to be an option, that anything would be about [00:37:14] Speaker 01: Yes, there could be a way to sue and get other information, but it was specifically taking off the table. [00:37:20] Speaker 02: And it would be about monetary damages, right? [00:37:21] Speaker 01: That's correct. [00:37:22] Speaker 02: OK, whereas now you're arguing that under Tucker Act, there's no money mandating here. [00:37:27] Speaker 01: Because the dispute as raised by Rocky Mountain Helium is about this information being given, not specifically about the sunset provision or any other part that would mandate [00:37:41] Speaker 01: sort of money, a money mandating provision of the settlement agreement. [00:37:46] Speaker 00: Can I ask you one, one date question which came up earlier? [00:37:50] Speaker 00: Um, and the only thing that I'm seeing in the record is in your April 21st, 2009 letter, you, you start by saying something like you had until April 16th to make the payment and now it's five days later. [00:38:04] Speaker 00: So we're, we're done with you. [00:38:07] Speaker 00: Was that April 16th kind of you start from the August settlement and add the 30 days to get the data and then you get the data and the 60 days for you to give it to them and then the 90 days? [00:38:17] Speaker 00: Is that how we got to that April 16th or do you not know for sure? [00:38:22] Speaker 00: It's reasonably close. [00:38:23] Speaker 01: I believe that it was after 90 days of the provision of the information. [00:38:30] Speaker 01: I don't have that specific date in front of me. [00:38:32] Speaker 01: I can certainly confirm. [00:38:34] Speaker 01: It was not before the court below. [00:38:37] Speaker 01: It's not in the complaint or otherwise on the record. [00:38:44] Speaker 00: Oh, I'm sorry. [00:38:46] Speaker 00: We've almost not talked about the helium contract. [00:38:49] Speaker 00: Yes, that's correct. [00:38:51] Speaker 00: Talk about perhaps it not mattering. [00:38:55] Speaker 00: But ordinarily, we're obliged to decide jurisdictional questions first. [00:39:00] Speaker 00: Put aside standing for now. [00:39:02] Speaker 04: Of course, Your Honor. [00:39:04] Speaker 00: In this court, though not in the Court of Federal Claims, you raise a 2501 timeliness argument. [00:39:13] Speaker 01: Yes, Your Honor. [00:39:14] Speaker 01: That's because we did not understand Rocky Mountain Helium to be making an argument that the termination of the lease was, in fact, its claim now before the Court of Federal Claims. [00:39:26] Speaker 00: It doesn't matter that you didn't raise it before the federal court. [00:39:31] Speaker 00: The Supreme Court said you don't have to. [00:39:33] Speaker 00: So are we obliged to decide that before we decide whether on the set of documents that everybody now agrees is properly considered in this motion, whether the contract was in fact, the helium contract, the 1994 contract, was in fact terminated in 2004? [00:39:52] Speaker 00: Because it takes a little bit of reasoning, but not a lot to say, [00:39:56] Speaker 00: Well, the conclusion from that is the 2015 suit is out of time. [00:40:01] Speaker 00: Do we have to do that or can we say, well, that's a 12b6, there is no contract, you couldn't possibly have a breach claim because there is no contract to breach or do we have to say, well, that's actually a timeliness problem because timeliness is jurisdictional and there is no contract that breaches not. [00:40:24] Speaker 01: So with respect to [00:40:26] Speaker 01: any claim on whether the termination in 2004 was appropriate, that would be a timeliness question and a jurisdictional and this court should reach that first. [00:40:35] Speaker 01: To the extent Rocky Mountain Helium is claiming that the leasing, and this is what is in the complaint in count two, that leasing to another party in 2009 or 2010. [00:40:46] Speaker 00: That only lasted for a year. [00:40:48] Speaker 00: Right. [00:40:48] Speaker 00: That's why 2015 is way more than six years after 2004 and 2005. [00:40:52] Speaker 00: Doesn't matter. [00:40:54] Speaker 01: Right, and that would be more of a failure to state a claim issue on whether a claim based on events that happened in 2009 or 2010 would have been timely as of when the complaint was filed. [00:41:10] Speaker 01: But the problem is the preferential rights had terminated well before 2009, 2010. [00:41:14] Speaker 01: That's a failure to state a claim rather than a lack of jurisdiction because the leasing to another party as an alleged breach of the preferential rights [00:41:24] Speaker 03: So if their argument is that 2004 cancellation was improper, they're out on statutory limitations. [00:41:30] Speaker 01: That's correct, Your Honor. [00:41:31] Speaker 03: And that's jurisdictional. [00:41:32] Speaker 03: We have to decide that. [00:41:33] Speaker 03: If their argument is that somehow the 2009 and 10 events, which were in regard to preferential rights, they're not out on a time bar there. [00:41:41] Speaker 03: But your view is it's still properly dismissed for failure of state of claim. [00:41:45] Speaker 01: That's correct. [00:41:46] Speaker 01: Because those preferential rights, therefore, were exterminated or ran out in 2005. [00:41:54] Speaker 01: not 2009 or 2010. [00:41:57] Speaker 01: We therefore respectfully request that this court affirm the dismissal. [00:42:02] Speaker 01: Thank you. [00:42:22] Speaker 05: I'd just like to pick up with a question that Judge Hughes had for me. [00:42:27] Speaker 05: And I think we may have created a bit of a misimpression here. [00:42:32] Speaker 05: Judge Hughes, you had asked me if Recommend Helium had ever filed a request for mediation with Judge Goodman. [00:42:39] Speaker 05: And I said no, which was accurate. [00:42:42] Speaker 05: There was nothing to file because there was no proceeding in which to make a filing. [00:42:47] Speaker 05: But the parties had been talking for several weeks or months [00:42:52] Speaker 05: about that data issue and about the fact that Rocky Mountain Healing was withholding payment under the settlement agreement because it did not receive sufficient data. [00:43:01] Speaker 05: So there were two things going on that the parties were talking about for weeks or months in the first part of 2009. [00:43:10] Speaker 05: And Judge Goodman was apprised of those discussions. [00:43:13] Speaker 05: He was copied on some of them. [00:43:15] Speaker 03: But did you ever ask him to make a decision on the sufficiency of the data? [00:43:20] Speaker 05: No, because he was the mediator. [00:43:21] Speaker 05: He would have not been authorized to make a decision. [00:43:24] Speaker 05: He was simply facilitating discussions of the parties. [00:43:27] Speaker 03: I don't understand that at all. [00:43:28] Speaker 03: I mean, the order from the CBA submitting, dismissing this case said these types of disputes shall be submitted to Judge Goodman. [00:43:39] Speaker 05: Well, I have to tell you that I have seen nothing in the record to indicate that either party ever had any interest in appointing Judge Goodman to make any decisions. [00:43:48] Speaker 05: As an arbitrator or in any other capacity, he was only the mediator, only facilitating discussions, and the parties were in discussions for a long time before the government terminated the settlement agreement. [00:44:00] Speaker 03: What is the point of suggesting him as a mediator if not to get his view on whether the data was sufficient or not? [00:44:09] Speaker 05: I'm sorry, could you repeat that question? [00:44:11] Speaker 03: I don't understand your point. [00:44:13] Speaker 03: If Judge Goodman wasn't there to give his view on whether the one party or the other was complying with the agreement, then what's the point of the mediation clause at all? [00:44:25] Speaker 05: All the settlement required was that a dispute be submitted to the mediator, to Judge Goodman, and he was certainly apprised of the discussions. [00:44:34] Speaker 05: Did they schedule a date to sit down and formally have a mediation? [00:44:38] Speaker 05: They hadn't gotten to that point, and there were [00:44:40] Speaker 05: Two controversies going on at the same time. [00:44:43] Speaker 05: There was a sufficiency of the data. [00:44:45] Speaker 05: There was a non-payment of the rent. [00:44:47] Speaker 03: How did he ever know that he was being asked to opine on the government's compliance with its obligation if somebody didn't ask him to opine? [00:44:59] Speaker 03: CCing him on correspondence back and forth doesn't sound to me like submitting it to him for resolution. [00:45:08] Speaker 05: And I would go to the question that Judge Toronto was asking about the fact that there is even a mediation. [00:45:15] Speaker 05: It's not mandatory. [00:45:17] Speaker 05: It's not binding. [00:45:18] Speaker 05: The parties can just say, no, I'm not going to mediate, or yeah, I'll mediate, but we're not going to settle. [00:45:23] Speaker 05: There's no resolution, necessarily. [00:45:26] Speaker 05: And what Judge Braden did in her order, bottom of page 10 of her order, or APPX 10, bottom of order, she said, this has to be adjudicated before the CBCA. [00:45:38] Speaker 05: That was the basis of the court decision? [00:45:40] Speaker 03: Well, no. [00:45:40] Speaker 03: I mean, I get you. [00:45:41] Speaker 03: I think the way I look at this, her view that this was removed from the subject matter of the court of federal claims because it was an exclusive alternative dispute resolution is incorrect. [00:45:57] Speaker 03: But that still doesn't answer the question of whether you state a claim for whether the government breached this agreement. [00:46:07] Speaker 05: The government breached the agreement by not performing its part of the deal in the settlement agreement, and then it went and terminated wrongfully the settlement agreement by wrongfully invoking the sunset clause. [00:46:19] Speaker 05: That's all set forth in the complaint. [00:46:22] Speaker 05: You just talked about exclusive. [00:46:24] Speaker 05: I should point out the settlement agreement does not say anywhere in it for the dispute resolution. [00:46:29] Speaker 05: This is the only means the parties can have to resolve disputes. [00:46:32] Speaker 05: It simply says, [00:46:34] Speaker 05: Notify Judge Goodman. [00:46:36] Speaker 05: Submit this to Judge Goodman. [00:46:38] Speaker 05: Doesn't say this is exclusive means, the only means, or anything. [00:46:41] Speaker 05: And there's lots of case law out there. [00:46:42] Speaker 05: Johnson versus US is one. [00:46:44] Speaker 03: I got that. [00:46:44] Speaker 03: Can you just clarify for us on the helium lease issue? [00:46:48] Speaker 03: Because we have to write a decision. [00:46:49] Speaker 03: And I'm really confused what you're arguing. [00:46:52] Speaker 03: On the lease issue, are you arguing that the 2004 cancellation was a breach, or that the events in 2009 and 2010 were a breach? [00:47:03] Speaker 03: Or are you arguing both? [00:47:06] Speaker 05: Well, I would say that ultimately, the breach of the helium contract was when the preferential rights were violated, and that was in 2009. [00:47:17] Speaker 05: That's what the first claim for relief talks about. [00:47:21] Speaker 03: So you're not saying the cancellation in 2004 was improper? [00:47:27] Speaker 05: It was improper, and that's why it was the subject of an appeal before the Civilian Board of Contract Appeals. [00:47:33] Speaker 03: But are you arguing that claim before the Court of Federal Claims? [00:47:37] Speaker 05: Yes. [00:47:37] Speaker 05: That's also alleged. [00:47:38] Speaker 03: And how could the Court of Federal Claims have jurisdiction over a 2004 event canceling the contract when you didn't file until 2015? [00:47:47] Speaker 05: Because it was a 2009 event. [00:47:49] Speaker 05: It was April 21, 2009. [00:47:50] Speaker 03: You're answering in circles again. [00:47:52] Speaker 03: I see there's two different events. [00:47:56] Speaker 03: Let's assume there's jurisdiction over the 2009 event. [00:48:00] Speaker 03: There may be other reasons why she properly dismissed those claims. [00:48:03] Speaker 03: The 2004 event, if you're considering it as a separate event, you blew the statute of limitations. [00:48:13] Speaker 05: For 2004, that would be outside six years. [00:48:16] Speaker 05: I agree with that. [00:48:17] Speaker 05: But 2009 is when the operative events occurred that we're complaining about in the complaint. [00:48:23] Speaker 05: OK. [00:48:23] Speaker 05: Got it. [00:48:25] Speaker 02: Thank you. [00:48:25] Speaker 02: Your time has expired.